Sharma (Migration)
[2018] AATA 5041
•2 November 2018
Sharma (Migration) [2018] AATA 5041 (2 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Upendra Sharma
CASE NUMBER: 1715127
HOME AFFAIRS REFERENCE(S): BCC2017/1506351
MEMBER:Christine Kannis
DATE:2 November 2018
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Statement made on 02 November 2018 at 8:15am
CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) – Subclass 573 (High Education Sector) – unsatisfactory course attendance –gap in study – no evidence of enrolment into another course – hardship – parents disappointment – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 359AA
Migration Regulations 1994 (Cth), Schedule 8 condition 8202CASES
Liu v MIMIA[2003] FCA 1170.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision dated 4 July 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
The applicant appeared before the Tribunal by telephone on 1 October 2018 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevant to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
Did the applicant comply with Condition 8202?
On 5 February 2014 the applicant was granted a visa in Subclass 573 Higher Education Sector with condition 8202 attached. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.
Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant has not been enrolled in a registered course of study since his enrolment in a Bachelor of Business was cancelled on 28 September 2016. The PRISMS shows the applicant was also enrolled in a Diploma of Hospitality Management and a Certificate IV in Commercial Cookery, both of which were also cancelled on 28 September 2016. The variation reason for the Certificate IV in Commercial Cookery was stated to be unsatisfactory attendance.
Having regard to the information in the PRISMS, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 28 September 2016. The Tribunal finds that he breached condition8202(2)(a) of his visa.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.
Consideration of the discretion to cancel the visa
There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).
On 6 June 2017 the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of his visa.
On 21 June 2017 the applicant’s representative responded to the NOICC and provided the following information:
·His advisor in India decided that he should study a Certificate IV in Business, a Diploma of Business followed by a Bachelor of Business.
·He successfully finished the Certificate IV but did not find the Diploma course as per his expectations and in spite of trying his best in semesters one and two, he could not successfully pass his course.
·Instead of giving up and to adhere to his student visa conditions, he changed his education provider and enrolled in Certificates III & IV in Commercial Cookery leading up to a Bachelor of Business.
·Due to circumstances beyond his control, the applicant did not realise until the NOICC was issued that he may be in breach of his visa conditions. As soon as he realised, he obtained a place in Certificate IV in Commercial Cookery and Diploma in Hospitality at Stanley College in Perth.
·If the applicant returns to India without any qualification, he would be a failure and a disappointment to his parents and this would impact on his mental health.
At the time of responding to the NOICC the applicant provided an Offer Letter from Stanley College dated 14 June 2017 for a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management.
The delegate noted that the applicant claimed to have obtained a place in a Certificate IV and a Diploma course after he received the NOICC however the Offer Letter was for a Certificate III in Commercial Cookery, Certificate IV in Commercial Cookery and a Diploma course. The delegate noted that the applicant had previously completed the Certificate III in Commercial Cookery and he was seeking to re-enrol in the same course. The delegate formed the view that the Offer Letter was obtained only as a response to the NOICC.
The applicant told the Tribunal that his enrolment was cancelled because his father’s wholesale business in Nepal did not go well in September 2016 and he lost all his business. The applicant said this meant his father was unable to send him money to pay his tuition fees.
The Tribunal asked the applicant whether he had discussed his financial circumstances with his education provider. He said he was given a couple of extensions of time to pay but the education provider didn’t really help him.
The Tribunal noted that the applicant’s financial difficulties had not previously been raised with the Department and was not referred to in the response to the NOICC. He said he told his agent that he had been unable to pay his tuition fees because of his father’s declining business but the agent had not included it in the response.
The applicant told the Tribunal that three or four months after his enrolment was cancelled he tried to enrol in different colleges including Stanley College but they wouldn’t take him. He said by this time his father had managed to send him some money.
The Tribunal put to the applicant that he would have known he was in breach of a condition of his visa following cancellation of his enrolments in the Certificate IV in Commercial Cookery, the Diploma of Business and a Bachelor of Business on 28 September 2016. In contrast to the information provided in the response to the NOICC he conceded that he was aware that he was in a breach of a condition of his visa. He said he tried to enrol in other colleges but they would not take him.
The Tribunal put information to the applicant under s.359AA of the Act. The Tribunal informed the applicant that subject to his comment or response, the information would be the reason or part of the reason for affirming the decision under review. The Tribunal put to the applicant that the PRISMS shows the variation reason for the Certificate IV in Commercial Cookery was unsatisfactory attendance. The details provided were that the applicant had been reported for unsatisfactory attendance for the study period from 25 July 2016 to 14 September 2016 with his potential attendance being 54%. The applicant told the Tribunal that he did not feel like attending his classes because he would be approached by the college during his classes and asked to attend meetings about non-payment of his fees.
The Tribunal considered the applicant’s contention that his enrolment was cancelled because he was unable to pay his tuition fees. The Tribunal pointed out that when applying for a Subclass 573 visa an applicant is required to satisfy the Department that he or she has available funds to support themselves during their stay in Australian and sufficient funds for tuition and course fees prior to the grant of the visa. The applicant said that at the time of applying for the visa he did not know what would happen to his father’s business.
The Tribunal noted that more than eight months elapsed from when the applicant’s enrolment was cancelled and the issuing of the NOICC. The applicant’s evidence was that he tried to enrol in colleges but none would take him. Noting that he was able to enrol a few days after the NOICC issued the Tribunal asked the applicant how he was able to gain enrolment at that time. He said that when he received the NOICC he told himself that he needed to enrol now and that he couldn’t wait any longer.
The Tribunal asked the applicant what he had been doing since cancellation of his enrolment. He said apart from trying to enrol at some colleges, he has done nothing. He is currently living with a family member and does not have to pay rent. His father has been able to send him a limited amount of money each month to pay for his other living expenses.
The Tribunal asked the applicant the reason he came to Australia to study. He said he came to study Accounting but he found it too difficult so he changed his area of study to Cookery. He originally planned to look after his father’s business.
Regarding the potential hardship which would result from the cancellation of his visa, the applicant said if he returns to Nepal without any qualification his parents would be disappointed because they want him to be qualified in something so he can look after them. If he goes home without a qualification and without a certificate his parents will be frustrated.
Conclusion
The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of the breach and reasons for the breach as set out in the applicant’s oral evidence.
The purpose of the higher education student visa is to enable the student to undertake study at a higher education level. The applicant ceased to be enrolled in a Higher Education Sector course on 28 September 2016 and more than eight months elapsed from that date until the NOICC was issued. The applicant did not dispute that he was aware he was in breach of a condition of his visa following cancellation of his enrolment. He said he tried to enrol at other colleges however they would not take him. The Tribunal does not accept this evidence because the applicant was able to enrol after he received the NOICC and the reason he provided for being able to do so was that he couldn’t wait any longer to enrol.
Based on the evidence, the Tribunal finds the applicant’s breach of condition 8202 of his visa to be significant because he was not engaging in study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.
The Tribunal accepts that the cancellation of the applicant’s visa will be disappointing to his parents however it is satisfied that there is not a degree of hardship to mean that the visa should not be cancelled.
The evidence did not demonstrate that the ground for cancellation arose due to circumstances beyond the applicant’s control. Whilst the Tribunal accepts that a decline in the applicant’s father’s business in 2016 may have occurred, there was no evidence before the Tribunal to substantiate this contention. There was nothing before the Tribunal to indicate that the applicant discussed deferral of his studies on compassionate grounds with his education provider. In addition the Tribunal notes that financial capacity is taken into account when a Subclass 573 visa is granted and the applicant would have provided evidence that he had available funds to support himself during his stay in Australian and sufficient funds for tuition and course fees.
Nothing adverse is known about the applicant’s past and present conduct towards the Department. The Tribunal gives this some weight in the applicant’s favour.
The Tribunal is not aware that there are any persons in Australia whose visas whose visas would, or may, be cancelled under s140.
The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant however finds in itself to not be sufficient to weigh in the applicant’s favour.
There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation.
The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.
The Tribunal has carefully considered the applicant’s circumstances independently and cumulatively. The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Christine Kannis
MemberATTACHMENT
Migration Regulations 1994
…
Schedule 8
8202(1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).
(2)A holder meets the requirements of this subclause if:
(a)the holder is enrolled in a registered course; or
(b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.
(3)A holder meets the requirements of this subclause if neither of the following applies:
(a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:
(i)section 19 of the Education Services for Overseas Students Act 2000; and
(ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;
(b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:
(i)section 19 of the Education Services for Overseas Students Act 2000; and
(ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007
(4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Breach
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Jurisdiction
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